Administrative forfeiture should not be allowed in Mississippi again

Published 10:13 am Wednesday, January 30, 2019

If you asked most Mississippians whether the state should be able to confiscate cash and property from a person who was never charged with, much less convicted of a crime, the answer would be a resounding “no.” Yet this is exactly what occurs every day under a practice known as civil forfeiture.

Right now, if Mississippians are accused of a crime, they are tried in a criminal proceeding. But if their property is seized by law enforcement, it instead goes into a civil proceeding, which lacks many meaningful safeguards.

The forfeited property does not even have to belong to the person suspected of criminal activity. Innocent property owners can easily become ensnared in this system. A parent who lets their teenager drive the family car may be surprised to learn they may never get the car back if the teenager is pulled over with drugs in the car, if the parent cannot prove they had no idea about the drugs.

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Proponents of civil forfeiture argue that it is an important tool in combating drug trafficking throughout our state. This is a worthy goal, and should be pursued. But it should be pursued in a way that is consistent with basic American principles of fairness and justice. Those include the presumption of innocence and the protection from punishment for those not convicted of a crime under a fair and impartial process.

Returning to these principles would not require police to change any of their current practices. Police officers would still be able to take property they believed to be connected to crime. The only difference would be that prosecutors would actually need to charge and convict the property owner before the state could keep the property. If anything, requiring criminal convictions for forfeiture cases would likely increase the number of criminals who were charged, convicted, and taken off the streets.

Even if our elected officials are not willing to require a conviction before property is forfeited, they should at least ensure that the current civil forfeiture process has as many safeguards as possible. But this is anything but the case.

By far, the most problematic aspect of civil forfeiture is the seizure of low value property, because it usually does not make economic sense for the property owner to contest. If the state took a $4,000 car from you, and it would cost you $10,000 to hire an attorney to fight to get your car back, would you pursue it? If you won, you’d lose.

Yet rather than offering additional protections for innocent owners who have low value property seized, until recently state law created even more risk for low value property to be unfairly confiscated. Under a practice known as “administrative forfeiture,” the government was allowed to take and keep property valued at under $20,000 without even having the forfeiture approved by a civil court. The burden was on the owner to sue if he or she wanted to contest the forfeiture.

Fortunately, last year, the legislature allowed the law that authorized administrative forfeitures to expire. However, lawmakers are already promising to bring the law back this year. The data shows that they shouldn’t.

The legislature recently required a publicly accessible database to be created, providing some basic information about every seizure that occurs. This law has now been in effect for 18 months, and the initial data confirms that administrative forfeiture is a bad idea.

According to an analysis by the Mississippi Center for Public Policy, the database includes forty-seven seizures in which the state pursued administrative forfeiture. The average value of this seized property was only $2,988. Forty-seven percent of the seizures were valued at less than $1,000. Eight seizures involved property worth $250 or less.

Moreover, the data indicates that, far from being used exclusively to take large quantities of drugs and cash from drug mules and cartel affiliates, trivial personal valuables are often taken under administrative forfeiture. The database includes items like an Apple Watch, multiple seizures of individual iPhones, and a Makita power drill. In two instances, agencies seized as little as $50 in cash. All of this gives the appearance that administrative forfeiture is sometimes used for roadside wallet and pocket emptying.

Whether guilty or innocent, it makes no sense for anyone to pursue legal action over these types of seizures, especially if the potential of criminal charges is hanging over their head. The result is a system in which the government can confiscate personal property with virtually no expectation of having to justify its actions.

Mississippians want to combat drug trafficking. But we also respect the property rights of innocent owners, and we expect our government to as well. The two are not mutually exclusive. Our lawmakers should look for ways separate criminals from their ill-gotten gains, while ensuring adequate protections for the law abiding public.

Aaron Rice is the Director of the Mississippi Justice Institute, the legal arm of the Mississippi Center for Public Policy.